Oops! The Injured Client Did Not Sign the Waiver — What Now?

By Doyice Cotten

Tyrone Hill tripped over a yoga mat which had been left on the floor of a basketball court and suffered a fracture of the leg (Hill v. LA Fitness, 2018).  He sued LA Fitness alleging negligence.

LA Fitness moved for summary judgment on the basis of a liability waiver signed by Hill. Pertinent parts of the waiver follow (Bold emphasis added.):

IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member and/or by Member’s minor children of LA Fitness’ facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of Member and Member’s minor children being permitted to enter any facility of LA Fitness (a “Club”) for any purpose including, but not limited to, observation, use of facilities, services or equipment, or participation in any way, Member agrees to the following: Member hereby releases and holds LA Fitness, its directors, officers, employees, and agents harmless from all liability to Member, Member’s children and Member’s personal representatives, assigns, heirs, and next of kin for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to the death of member, whether caused by the active or passive negligence of LA Fitness or otherwise, to the fullest extent permitted by law, while Member or Member’s minor children are in, upon, or about LA Fitness premises or using any LA Fitness facilities, services or equipment.

As indicated in last week’s post dealing with Pennsylvania waiver law, the Pennsylvania Supreme Court has held that an exculpatory clause is valid when three conditions are met.

  • First, the clause must not contravene public policy.
  • Secondly, the contract must be between persons relating entirely to their own private affairs and
  • Thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.

In addition, a valid waiver is still “unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” So a waiver must meet the following “guiding standards”:

  • the contract language must be construed strictly, since exculpatory language is not favored by the law;
  • the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties;
  • the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and
  • the burden of establishing the immunity is upon the party invoking protection under the clause.

So, even though courts do not favor waivers, “[t]he Supreme Court of Pennsylvania has consistently been reluctant to invalidate a contractual provision due to public policy concerns.”

In this case, Plaintiff does not challenge the waiver based on any of these guidelines; instead, Hill claims that the waiver is not good because he did not sign it. Testimony revealed that he did not sign the waiver – his former spouse did. He could not because at the time he had no credit card, but his wife did. Through further examination, he admitted to initialing the agreement in several places including on page two. He also admitted to having read the waiver.

The court stated that while Hill may not have signed the membership agreement, he did read the document and initialed the remaining pages, including the exculpatory clause, “which was set forth on the second page of the agreement in a box and in larger typeface from the rest of the document.” The court, therefore found for LA Fitness because Hill understood that he was entering into a written contract which was setting forth the terms and conditions of his membership with LA Fitness. Therefore, he knew that he was giving up the right to make any claim against LA Fitness for any loss or damages which he might incur as the result of any active or passive negligence on its part. The court concluded that Plaintiff voluntarily entered into the agreement with Defendants; thus, the court granted summary judgment in favor of LA Fitness.

Risk Management Take-Aways

  • First, know that LA Fitness dodged the bullet – courts in many states would not have been so understanding in a case like this one. Make sure each and every client signs the waiver.
  • Second, a yoga mat left on the floor of a basketball court might well be considered negligence. Without a waiver, a provider in this situation would have limited protection and would likely be found liable for damages. A well-written waiver, signed by a client, can provide liability protection in most states.

Photo Credit: thanks to HengHonglin via Flickr.